A Billings Police Officer observed Giacomini driving the wrong-way on a one-way street and initiated a traffic stop. The Officer testified that he noticed Giacomini had watery, blood-shot eyes and smelled of alcohol so he conducted a series of Field Sobriety Tests which indicated impairment. When asked to take a preliminary breath test, Giacomini refused – so he was arrested and taken to Yellowstone County Detention Facility for further testing.

At the detention facility, Giacomini again failed the field sobriety tests and a search showed he had previously refused a breath test in 1990. Based on those factors, the officer applied for and obtained a search warrant for a sample of Giacomini’s blood. Although he was apparently uncooperative, a blood sample was taken and produced a BAC of 0.12. Giacomini was charged with DUI under Mont. Code Ann. § 61-8-401(1)(a) in Municipal Court.

Giacomini filed a motion to suppress the results of the blood test arguing that the draw violated the Montana Constitution and was not supported by probable cause. The Municipal Court denied the motion on the basis that the officer did not violate Giacomini’s constitutional right of privacy and acted pursuant to a valid search warrant. Approximately a month later, Giacomini filed a motion entitled “Request for Hearing” and asked the Municipal Court to reconsider the suppression issue because the video of the blood draw showed that Mr. Giacomini was “continually stuck” with needles. That motion was denied as untimely. Giacomini pled nolo contendere, reserving the suppression issues for appeal. The District Court affirmed the Municipal Court’s rulings.

On Appeal to the Montana Supreme Court, Giacomini challenged the legality of the blood draw and the Municipal Court’s denial of his motion to reconsider as untimely. The Supreme Court found that the warrant was supported by probable cause and did not violate his constitutional right to privacy. It also found that the Municipal Court did not err by denying his motion as untimely.

In challenging the warrant, Giacomini argued that his prior refusal of a breath test was insufficient to establish probable cause to support a warrant to draw his blood. The Montana Supreme Court disagreed, finding that the warrant was supported by a number of different facts: 1) he had driven the wrong way down the road; 2) he had watery and bloodshot eyes; 3) he smelled of alcohol; 4) he swayed and staggered; and 5) he performed poorly on the field sobriety tests.

Giacomini also cited to Missouri v. McNeely, a U.S. Supreme Court decision which held that the natural dissipation of alcohol from the bloodstream does not constitute a per-se exigent circumstance justifying a warrantless blood draw in a DUI investigation. Giacomini applied this to his situation, arguing that if dissipation is insufficient for exigent circumstances, it is insufficient for probable cause. The Montana Supreme Court ruled that the probable cause determination was not based solely on alcohol dissipation, included considerable other evidence, and the case did not involve a warrantless blood draw based on exigent circumstances so McNeely did not apply.

The Supreme Court declined to address Giacomini’s constitutional challenge to the blood draw.

Finally, the Supreme Court upheld the Municipal Court’s decision that the Request for hearing was untimely. The Court believed that it was essentially a second motion to suppress, and found that it should have been raised before the omnibus hearing. Because it was filed approximately three months after that date, it was untimely.

In general, criminal acts require two separate elements: 1) intention; and 2) action. Commiting an action against your will, or involuntarily, is usually not criminal. In Montana, this is codified at Section 45-2-202, MCA, which provides:

A material element of every offense is a voluntary act, which includes an omission to perform a duty that the law imposes on the offender and that the offender is physically capable of performing, except for deliberate homicide under 45–5–102(1)(b) for which there must be a voluntary act only as to the underlying felony. Possession is a voluntary act if the offender knowingly procured or received the thing possessed or was aware of the offender’s control of the thing for a sufficient time to have been able to terminate control.

For most criminal offenses, it is a defense that the act was done involuntarily, such as during a seizure. However, there is a class of offenses where this doesn’t apply. Absolute liability offenses require no showing of intent. In Montana, DUI is an absolute liability offense. Section 61-8-401(7) (“Absolute liability … will be imposed for a violation of this section.”). This means that it is no defense to a charge of DUI that you didn’t intend to drive drunk.

At least mostly.

In City of Missoula v. Paffhausen, the Montana Supreme Court examined the defense of automatism for the first time. Paffhausen argued that she had been given a date rape drug that caused her impairment.Paffhuasen acknowledged that DUI is an absolute liability offense, and that she met two of the three elements of DUI: on a public street and impaired. However, she maintained, the date rape drug prevented her from voluntarily driving or being in actual physical control.The City filed a motion to prevent her from using the defense, arguing that it can only be asserted when a defendant’s mental state constitutes an element of the charged offense. Since DUI is absolute liability, the defense should not be available. The city court agreed and Paffhausen appealed all the way to the Montana Supreme Court.

After evaluating past Montana DUI caselaw in State v. Leprowse, the Montana Supreme Court held that absolute liability does not necessarily mean absolute liability. It found that allowing the automatism defense would meet certain other policies embodied in the Montana Code. The majority concluded that Paffhausen was entitled to raise automatism as an affirmative defense based on her claim of being subjected to a date rape drug. In order to prove her automatism defense, the Court went on, she will need to prove by admissible evidence that she did not act voluntarily when she drove her vehicle. Once she offers admissible evidence to this effect, it will be the State’s burden to prove (beyond a reasonable doubt) that she did act voluntarily.

I’ve talked before you about how your total number of DUIs is calculated. What people often forget is that all your past DUIs are fair game, even when they happen out of state. Often defendants will be shocked to find themselves charged with a second or third offense, thinking that because it happened in Vermont is doesn’t count in Montana. It does.

But, there’s a flip side to that rule. The conviction must be for a DUI-equivalent offense, and it must be constitutionally firm. Even for most lawyers, the term constitutionally firm (at least in this context) may be a bit vague. However, the Montana Supreme Court recently had a chance to address the issue in State v. Nixon (2012 MT 316).

On September 13, 2010, Kennth Nixon was charged with felony DUI for his fourth or subsequent DUI. Among his past convictions was a 1992 DUI conviction in Ravalli County Justice Court. Nixon challenged that conviction as constitutionally infirm. Specifically, he said, that the Ravalli County Justice Court failed to obtain a valid and express waiver of the right to counsel prior to taking his guilty plea. Nixon submitted an affidavit in support of the argument. It said:

On December 24, 1992 I pled guilty to DUI in Ravalli County Justice Court [.] I was indigent and unable to retain a private attorney. I was not represented by a lawyer in this proceeding. Prior to entering my guilty plea on December 24, 1992 I was not expressly advised of my right to counsel and I did not expressly and explicitly waive that right prior to pleading guilty.

The District Court (his trial court) found that the conviction was firm, and found that Nixon had failed to meet his burdent o come forward with an affirmative defense establishing that the 1992 conviction was obtained in violation of the Constitution. Following that decision, Nixon entered a no contest plea to the felony DUI charge, and appealed.

The Montana Supreme Court explained that a constitutionally inform prior conviction used for enhancement purposes amounts to sentencing based upon misinformation, which is prohibited by the Due Process Clause of Article II, Section 17 of the Montana Constitution. The Court uses a three-step framework for evaluating collateral challenges to prior convictions offered for sentence enhancement purposes:

1. a rebuttable presumption of regularity attaches to the prior conviction, and we presume that the convicting court complied with the law in all respects;

2. the defendant has the burden to overcome the presumption of regularity by producing affirmative evidence and persuading the court, by a preponderance of the evidence, that the prior conviction is constitutionally infirm; and

3. once the defendant has done so, the State has the burden to rebut the defendant’s evidence. There is no burden of proof imposed on the State to show that the prior conviction is valid, however. The State’s burden, rather, is only to rebut the defendant’s showing of invalidity.

A defendant can’t point to an ambiguous or silent record, but must produce affirmative evidence establishing that the prior conviction was constitutionally infirm. Affirmative evidence is evidence that demonstrates that certain facts actually existed at some point in the past – e.g., that an indigent defendant actually requested the appointment of counsel but counsel was actually refused. It takes more than ambiguous documents, self-serving and conclusory inferences, or forcing the State to prove the validity of the prior conviction (which is already presumed).

In reviewing Nixon’s affidavit, the Supreme Court reiterated that the defendant bears both the burden of production and persuasion. The burden of production requires the defendant to produce some evidence with establishes his claim. Nixon met that requirement. What he failed to do was persuade. Specifically, the Supreme Court looked to testimony by Judge Sabo, who was a judge in Ravalli County Justice Court at the time Nixon was sentenced. While she was assigned his case, it was actually Judge Sperry who took Nixon’s plea and sentenced him. Because Nixon failed to persuade the District Court, in the face of Judge Sabo’s contrary testimony, and because his own testimony included some uncertainty, the Supreme Court found that he had failed to carry the full burden imposed and denied his appeal.

This decision seems to contradict the Court’s prior decisions in State v. Howard (2002 MT 276) and State v. Walker (2008 MT 244). In Howard and Walker, the Court recognized that a defendant’s unequivocal and sworn statements that he did not waive the right to counsel constituted direct evidence which rebuts the presumption of regularity. In both cases the Supreme Court found that the defendants’ affidavits contained unequivocal and sworn statements that they did not waive their rights to counsel, and held that the defendants satisfied their burdens. However, the Court distinguishes Nixon from these cases based on State v. Maine (2011 MT 90). In Maine, the Court determined that the ultimate burden of proof (production and persuasion) and that he must prove it by a preponderance of the evidence.

In the end, Nixon’s felony DUI conviction was upheld. The District Court sentencing him to the Department of Corrections for a period of thirteen months, and ordered that if he successfully completed the WATCH program, the remainder of his thirteen months would be served on probation, followed by a five-year suspended sentence to the Department of Corrections.

In August of 2011, David Kime was charged with felony DUI, careless driving, and operating a motor vehicle while a habitual traffic offender. These charges came about following a traffic accident where Kime drove through an intersection and hit another vehicle. In January of 2012, the State filed notice that it intended to seek persistent felony offender status in Kime’s case. The basis for this was Kime’s May 2009 conviction for felony DUI. Kime objected to the persistent felony offender designation, but his objection was denied by the District Court.

Ultimately, Kime pled guilty to the felony DUI charge and the State dismissed the charge of driving while a habitual traffic offender. A bench trial was held on the careless driving charge which resulted in his conviction. Kime was sentenced to ten years at the Montana State Prison with no time suspended as a persistent felony offender for the felony DUI, and to 30 days in jail on the careless driving conviction. He was given credit for 246 days of time served.

On appeal, Kime argued that the District Court erred in sentencing him as a persistent felony offender. His position was that the persistent felony offender statutes conflicted with the sentencing rules provided for felony DUI. And because the persistent felony offender statutes are general, the felony DUI sentencing statute is specific. Therefore, the DUI statute (as the more specific option) should over ride. He acknowledged that this was contrary to the Supreme Court’s precedent in State v. Damon (2005 MT 218). The Court disagreed stating that “[i]n the decisions following Damon, this Court has clearly established that the intent of the persistent felony offender statutes is that they replace the sentences for the underlying felony.” Because the persistent felony offender sentencing provisions replace the underlying felony offense there is no need to resort to the rules of statutory construction, according to the Court. It’s the purpose of the felony offender statutes to conflict with the other sentencing statutes, it’s a feature not an error.

Kime also challenged his sentencing to 30 days in jail for the careless driving, arguing that the District Court exceeded its authority when it imposed that sentence.Under 61-8-711(2) and -716, MCA, the only penalty for careless driving is a fine between $10 and $100. The Supreme Court remanded the case with instructions to the District Court to strike the illegal jail time imposed in the sentence for careless driving.

Finally, Kime raised an argument of ineffective assistance of counsel. Specifically, he said that his counsel’s failure to argue against the sentence imposed for the DUI was per se unreasonable. However, the Supreme Court pointed to numerous statements by Kime where he expressed a willingness to accept anything the District Court decided on, so long as it did not include any suspended time. The Court believed that Kime’s attorney followed his instructions, and did not provide deficient representation.

Mark Haldane was convicted of driving under the influence of alcohol (DUI) at the conclusion of a jury trial in Bozeman Municipal Court. He appealed to the District Court for Gallatin County, which affirmed the trial court’s denial of his motion to suppress. Haldane then appealed to the Montana Supreme Court arguing that: 1) when he was stopped based on an obstruction to his temporary registration permit by snow and a trailer hitch, it was a violation of his constitutional right to be free from unreasonable seizure; 2) his trial counsel rendered ineffective assistance; and 3) his sentence violated due process because it was based on his indigency.

In Montana, officers may initiate a traffic stop on any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense. Section 61-3-301(1)(a), MCA, provides that “a person may not operate a motor vehicle … upon the public highways of Montana unless the motor vehicle … is properly registered and has the proper license plates conspicuously displayed on the motor vehicle.” Furthermore, § 61–3–301(1)(a), MCA, requires that the “license plate must be securely fastened to prevent it from swinging and may not be obstructed from plain view.” The statute defines “conspicuously displayed” as “obviously visible and firmly attached.”

Haldane argued that Montana’s weather and the prevalence of farm and other towing vehicles make it unlawful for law enforcement officers to effectuate a stop only because a temporary registration is obscured by snow and a ball hitch. He relied on concurrences by Justice Nelson in State v. Rutherford, 2009 MT 154, and State v. Cooper, 2010 MT 11. As Justice Nelson wrote in Cooper:

I continue to disagree with the proposition that, in this state, a license plate’s being obscured by the natural accumulation of the elements or driving conditions can constitute particularized suspicion for anything—except that Montanans often drive in foul weather and on foul roads.

However, the Supreme Court in this case rejected this analysis. Instead, it focused on case law establishing that a statutory violation alone is sufficient to establish particularized suspicion for an officer to make a traffic stop. And, the plain language of 61-3-301, MCA, requires that a license plate may not be obstructed from plain view and must be obviously visible. Under Montana law, a license plate obstructed by snow or a ball hitch is legally sufficient justification to authorize a traffic stop.

Haldane also argued that his sentence violated his due process rights because it was based on indigency. The State maintained that this argument had been waived because it wasn’t raised at the original sentencing, however the MT Supreme Court invoked the Lenihan exception which provides that an appellate court may review any sentence imposed in a criminal case if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.

In this case, the Court originally planned to sentence Haldane to six months with all but three days suspended. However, after it was revealed that Haldane was indigent and unable to make his payments, the Court increased his sentence to one year with all but three days suspended. Because his sentence was increased to the maximum sentence based on his inability to pay the fines and fees, it was a violation of due process.

State v. Flynn is a Montana Supreme Court decisions involving a DUI case. Specifically, the issue for the Court was whether the Deputy had particularized suspicion to stop Flynn’s vehicle. Particularized suspicion is an important concept in Montana DUI law, and something that I have discussed before on here.

A police officer must have a particularized suspicion in order to stop a vehicle in Montana. To show sufficient cause to stop a vehicle, the State must show 1) objective data from which an experienced officer can make certain inferences; and 2) a resulting suspicion that the occupant of the vehicle is or has been engaged in wrongdoing or was witness to criminal activity.

In Flynn’s case, the Deputy testified that he saw Flynn’s truck cross the fog line three separate times over the course of about .3 miles. The question in the case was whether this justified stopping his vehicle (a stop which resulted in a DUI arrest).

Flynn’s attorney made a number of arguments, one being that under State v. Lafferty, crossing the fog line does not justify a traffic stop. The Montana Supreme Court clarified that Lafferty stated that crossing the fog line was not illegal. But an officer does not need to witness illegal behavior to form a particularized suspicion.

The Court also noted that the particularized suspicion analysis must focus on what the officer knew at the time of the stop – and that he doesn’t need to consider every possible legitimate excuse a driver may have.

With these things in mind, the Court found that the officer did have a sufficient particularized suspicion to initiate the stop.

Paul Sullivan, Esq.

Paul is a partner at Measure, Sampsel, Sullivan & O'Brien, P.C. in Kalispell, MT. He is an ivy-league educated, DUI Lawyer specializing in defending Montanans accused of Driving Under the Influence of Drugs or Alcohol. He represents clients across Montana in misdemeanor and felony charges, and license hearings.
Call 752-6373 today for a free initial consultation.